Questioning Questions in the Law of Democracy: What the Debate over Voter ID Laws' Effects Teaches About Asking the Right Questions

     The study of the law of democracy rests on a close relationship between lawyers and social scientists. As Pam Karlan has explained, this close relationship involves answering questions and questioning answers. In the ideal, the partnership between empiricists and legal scholars ensures that the best answers are given and the right questions are asked.

     This Article explores this partnership in the context of the controversy over laws that require voters to present identification when voting (“voter ID laws”). There is a raging political, legal, and academic debate over the effect of voter ID laws on voter turnout. Many social scientists have concluded that voter ID laws have had negligible effects on voter turnout. That conclusion may seem surprising—even difficult to believe—given how many eligible voters lack IDs. And that surprising conclusion has raised uncomfortable questions about whether the progressive legal alarm over voter ID laws—including litigation challenging those laws—was warranted.

     But the social scientists’ conclusion should not have been surprising. First, this Article resolves the debate on voter ID laws by harmonizing null findings in the causal literature with descriptive evidence unearthed in the course of litigation. Evidence from litigation suggests that more than 99% of registered voters who habitually vote may have the requisite ID for voting, even though large numbers of eligible (but not registered) voters lack IDs. It is therefore unsurprising that the best causal studies suggest that voter ID laws decreased turnout (i.e. voting conditional on registration) by no more than 2%. Those studies should not have expected any other result: existing causal studies sought to detect an effect that descriptive evidence did not support. Thus, the discord in the literature results not from the sidelining of important causal findings, but rather from the lack of interaction between the causal academic literature and litigation- derived descriptive evidence.

     Second, this Article addresses the implications of the dispute over the empirical effects of voter ID laws for the field of the law of democracy. In addition to answering questions and questioning answers, election law scholarship should question questions. I pose three questions about questions related to voter ID laws in this Article: (1) what is the expected size of the empirical effects of a given voting restriction? (2) is the estimated effect big or small? and (3) is the law in question a voter suppression law? Questioning questions contributes to better research by allowing social scientists to form reasonable hypotheses. It also ensures that attention—in research, policy, and litigation—is paid to all of the effects that these laws have on communities.

     Third, this Article uses the questioned questions to help clarify how the causal election law literature relates to the burden inquiry in the Anderson/Burdick standard governing federal constitutional protections for the right to vote. Anderson/Burdick standard balances the burdens imposed by the challenged law on the right to vote against the state’s justification for the law. Causal evidence of turnout effects is a clearly efficient—but also radically incomplete—measure of burdens on the right to vote. Conceptual clarity of both what turnout estimates measure and what doctrine asks ensures not only that all relevant evidence is presented and considered in voting-rights cases, but also that the social science literature is better positioned to produce doctrinally responsive research.

Contemporary Relevance of Race-Based Redistricting (with Wendy Tam Cho, Bruce Cain, & Iris Hui) (employing novel simulation technique to evaluate the effectiveness of minority-majority districts in increasing the representation of minority voters).